Bombay High Court
The Provident Investment Co. Ltd vs Premabai Mathradas Goculdas ... on 11 August, 2022
Bench: G.S. Patel, Gauri Godse
The Provident Investment Company Ltd v Premabai Mathradas
Goculdas & Ors
2-app-302-2011-J+.doc
Arun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 302 OF 2011
IN
NOTICE OF MOTION NO. 164 OF 2011
IN
SUIT NO. 36 OF 1969
WITH
CHAMBER SUMMONS NO. 1249 OF 2019
IN
APPEAL NO. 302 OF 2011
IN
NOTICE OF MOTION NO. 164 OF 2011
IN
SUIT NO. 36 OF 1969
WITH
INTERIM APPLICATION (L) NO. 13918 OF 2022
IN
APPEAL NO. 302 OF 2011
IN
NOTICE OF MOTION NO. 164 OF 2011
IN
SUIT NO. 36 OF 1969
WITH
NOTICE OF MOTION NO. 1607 OF 2011
IN
ARUN
APPEAL NO. 302 OF 2011
RAMCHNDRA
SANKPAL IN
Digitally signed by
ARUN
RAMCHNDRA
NOTICE OF MOTION NO. 164 OF 2011
SANKPAL
Date: 2022.08.12
17:49:21 +0530
IN
SUIT NO. 36 OF 1969
WITH
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2-app-302-2011-J+.doc
NOTICE OF MOTION NO. 260 OF 2014
IN
APPEAL NO. 302 OF 2011
IN
NOTICE OF MOTION NO. 164 OF 2011
IN
SUIT NO. 36 OF 1969
WITH
NOTICE OF MOTION NO. 360 OF 2019
IN
APPEAL NO. 302 OF 2011
IN
NOTICE OF MOTION NO. 164 OF 2011
IN
SUIT NO. 36 OF 1969
WITH
CHAMBER SUMMONS NO. 1249 OF 2019
IN
APPEAL NO. 302 OF 2011
IN
NOTICE OF MOTION NO. 164 OF 2011
IN
SUIT NO. 36 OF 1969
WITH
NOTICE OF MOTION NO. 994 OF 2019
IN
CHAMBER SUMMONS NO. 1249 OF 2019
IN
APPEAL NO. 302 OF 2011
IN
NOTICE OF MOTION NO. 164 OF 2011
IN
SUIT NO. 36 OF 1969
Page 2 of 26
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WITH
NOTICE OF MOTION NO. 781 OF 2019
IN
CHAMBER SUMMONS NO. 1249 OF 2019
IN
APPEAL NO. 302 OF 2011
IN
NOTICE OF MOTION NO. 164 OF 2011
IN
SUIT NO. 36 OF 1969
WITH
INTERIM APPLICATION NO. 258 OF 2019
IN
CHAMBER SUMMONS NO. 1249 OF 2019
IN
APPEAL NO. 302 OF 2011
IN
NOTICE OF MOTION NO. 164 OF 2011
IN
SUIT NO. 36 OF 1969
The Provident Investment Co Ltd,
A Company registered under the Indian
Companies Act, 1913 having Its registered office
at Edward Villa, Cuffe Parade, Colaba,
Mumbai - 400 005. ...Appellant
~ versus ~
1. Premabai Mathradas
Goculdas
2. Purshottamdas Mathradas
Goculdas
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Goculdas & Ors
2-app-302-2011-J+.doc
3. Laxmibai Tulsidas
Goculdas
4. Mulraj Dwarkadas
Goculdas
5. Pratap Dwarkadas
Goculdas
6. Jaisingh Dwarkadas
Goculdas
all of Bombay Indian Inhabitants
residing at 12, French Bridge,
Chowpatty, Bombay 400 007.
7. Pushpa Pratapsinh
Mathradas
Of Bombay Indian Inhabitant,
residing at Mathradas Visanji
Bunglow, Mathradas Visanji Road,
Andheri (East), Bombay 58
8. Manjula Madhavsinh
Thakkar,
Of Bombay Indian Inhabitant,
residing at Jhaveri Building,
Shantaram Narayan Lane,
Bombay 400 006.
9. Hemlata Vijaysinh
Ved(Since Deceased)
Of Bombay Indian Inhabitant,
residing at "Shailaja", Peddar Road,
Bombay 26.
9(a) Deepak Ved,
R/a Pashmina, 2nd Floor, Dr
Gopalrao Deshmukh Road, Pedder
Road,
Mumbai 400 026.
Page 4 of 26
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2-app-302-2011-J+.doc
10. Champubai Narottamdas
Goculdas
11. Harisinh Narottamdas
Goculdas
12. Lalit Narottamdas
Goculdas
13. Laxmikumar Narottamdas
Goculdas
All of Bombay Indian Inhabitants
residing at 12, French Bridge,
Chowpatty, Bombay -400 007.
14. Trikamdas Mathradas
Goculdas (Since Deceased)
Of Bombay Indian Inhabitant residing
at Requia Manzil, Garden Road,
Bombay.
14(a) Naina Ajay Goculdas,
R/a. 9, Rukiya Manzil, 61-A, B Desai
Road, Mumbai 400 026.
14(b) Shyam Ajay Goculdas,
R/a. 9, Rukiya Manzil, 61-A, B Desai
Road, Mumbai 400 026.
15. Ranchoddas Mathuradas
Goculdas
16. The Union of India,
Through Ministry of Law & Justice,
Aaykar Bhavan, Mumbai
17. The State of Madhya
Pradesh,
Through Chief Secretary,
Mantralaya, Bhopal
18. Dinesh M Thacker
Zaveri Bungalow,
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2-app-302-2011-J+.doc
Shantaram Lane, Malabar Hill,
Mumbai - 400 006.
19. Varsha M Thacker,
Zaveri Bungalow,
Shantaram Lane, Malabar Hill,
Mumbai - 400 006. ...Respondents
WITH
APPEAL (L) NO. 279 OF 2010
IN
CHAMBER SUMMONS NO. 113 OF 2010
IN
SUIT NO. 36 OF 1969
WITH
NOTICE OF MOTION (L) NO. 1731 OF 2016
IN
APPEAL (L) NO. 279 OF 2010
IN
CHAMBER SUMMONS NO. 113 OF 2010
IN
SUIT NO. 36 OF 1969
WITH
NOTICE OF MOTION NO. 1510 OF 2010
IN
APPEAL (L) NO. 279 OF 2010
IN
CHAMBER SUMMONS NO. 113 OF 2010
IN
SUIT NO. 36 OF 1969
WITH
NOTICE OF MOTION NO. 1510 OF 2010
IN
APPEAL (L) NO. 279 OF 2010
IN
Page 6 of 26
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Goculdas & Ors
2-app-302-2011-J+.doc
CHAMBER SUMMONS NO. 113 OF 2010
IN
SUIT NO. 36 OF 1969
WITH
NOTICE OF MOTION (L) NO. 1731 OF 2016
IN
APPEAL (L) NO. 279 OF 2010
IN
CHAMBER SUMMONS NO. 113 OF 2010
IN
SUIT NO. 36 OF 1969
The Provident Investment Co
Ltd,
A Company registered under the Indian
Companies Act, 1913 having Its registered
office at Edward Villa, Cuffe Parade, Colaba,
Mumbai - 400 005. ...Appellant
~ versus ~
1. Premabai Mathradas
Goculdas
2. Purshottamdas Mathradas
Goculdas
3. Laxmibai Tulsidas
Goculdas
4. Mulraj Dwarkadas
Goculdas
5. Pratap Dwarkadas
Goculdas
6. Jaisingh Dwarkadas
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Goculdas
All of Bombay Indian Inhabitants
Residents of 12, French Bridge,
Chowpatty, Mumbai 400 007.
7. Pushpa Pratapsinh
Mathradas
Of Bombay Indian Inhabitant,
residing at Mathradas Visanji
Bunglow, Mathradas Visanji Road,
Andheri (East), Mumbai 58
8. Manjula Madhavsinh
Thakkar,
Of Bombay Indian Inhabitant,
residing at Jhaveri Building,
Shantaram Narayan Lane,
Bombay 400 006.
9. Hemlata Vijaysingh
Ved(Since Deceased)
Of Bombay Indian Inhabitant,
residing at "Shailaja", Peddar Road,
Bombay 26.
9(a) Deepak Ved
R/a. Pashmina 2nd Floor,
Dr Gopalrao Deshmukh Road,
Pedder Road,
Mumbai 400 026.
10. Champubai Narottamdas
Goculdas
11. Harisingh Narottamdas
Goculdas
12. Lalit Narottamdas
Goculdas
13. Laxmikumar Narottamdas
Goculdas
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All of Bombay Indian Inhabitants
residing at 12, French Bridge,
Chowpatty, Bombay -400 007.
14. Trikamdas Mathradas
Goculdas (Since Deceased)
Of Bombay Indian Inhabitant residing
at Requia Manzil, Garden Road,
Bombay.
14(a) Naina Ajay Goculdas
R/a 9, Rukiya Manzil,
61-A, B Desai Road,
Mumbai 400 026
14(b) Shyam Ajay Goculdas
R/a 9, Rukiya Manzil,
61-A, B Desai Road,
Mumbai 400 026
15. Ranchoddas Mathuradas
Goculdas
Of Bombay Indian Inhabitant,
Residing at 12, French Bridge,
Choupatty, Mumbai - 400 007.
16. The Union of India,
Through the Secretary to the Union of
India, Ministry of Home Affairs,
Parliament Street, New Delhi - 110
001.
17. The State of Madhya
Pradesh,
Through the Secretary to the State of
Madhya Pradesh, Finance Dept,
Bhopal, Madhya Pradesh.
18. Dinesh M Thacker
Zaveri Bungalow,
Shantaram Lane, Malabar Hill,
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Mumbai - 400 006.
19. Varsha M Thacker,
Zaveri Bungalow,
Shantaram Lane, Malabar Hill,
Mumbai - 400 006. ...Respondents
WITH
APPEAL (L) NO. 404 OF 2010
IN
CHAMBER SUMMONS NO. 403 OF 2010
IN
SUIT NO. 36 OF 1969
WITH
NOTICE OF MOTION (L) NO. 1743 OF 2016
IN
APPEAL (L) NO. 404 OF 2010
IN
CHAMBER SUMMONS NO. 403 OF 2010
IN
SUIT NO. 36 OF 1969
WITH
NOTICE OF MOTION NO. 1977 OF 2010
IN
APPEAL (L) NO. 404 OF 2010
IN
CHAMBER SUMMONS NO. 403 OF 2010
IN
SUIT NO. 36 OF 1969
The Provident Investment Co ...Appellant
Ltd,
A Company registered under the Indian
Companies Act, 1913 having Its registered
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office at Edward Villa, Cuffe Parade, Colaba,
Mumbai - 400 005.
~ versus ~
1. Premabai Mathradas
Goculdas
2. Purshottamdas
Mathradas Goculdas
3. Laxmibai Tulsidas
Goculdas
4. Mulraj Dwarkadas
Goculdas
5. Pratap Dwarkadas
Goculdas
6. Jaisingh Dwarkadas
Goculdas
All of Bombay Indian Inhabitants
Residents of 12, French Bridge,
Chowpatty, Mumbai 400 007.
Sr. Nos. 1 to 6 deleted vide orders
dated 8th January 2010 without
impleading legal heirs.
7. Pushpa Pratapsinh
Mathradas
Of Bombay Indian Inhabitant,
residing at Mathradas Visanji
Bunglow, Mathradas Visanji Road,
Andheri (East), Mumbai 58
8. Manjula Madhavsinh
Thakkar,
Of Bombay Indian Inhabitant,
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residing at Jhaveri Building,
Shantaram Narayan Lane,
Bombay 400 006.
Deleted by orders dated 8th June
2010 read with and Legal
Representatives brought on record
of Defendants Nos. 4 &
5/Respondents Nos. 18 & 19
payment to order dated 27th
January 2010
9. Hemlata Vijaysingh
Ved(Since Deceased)
Of Bombay Indian Inhabitant,
residing at "Shailaja", Peddar
Road,
Bombay 26.
9(a) Deepak Ved
R/a. Pashmina 2nd Floor,
Dr Gopalrao Deshmukh Road,
Pedder Road,
Mumbai 400 026.
10. Champubai Narottamdas
Goculdas
Deleted by orders dated 8th
January 2010 and 4th March 2010
11. Harisingh Narottamdas
Goculdas
12. Lalit Narottamdas
Goculdas
13. Laxmikumar
Narottamdas Goculdas
All of Bombay Indian Inhabitants
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residing at 12, French Bridge,
Chowpatty, Bombay -400 007.
14. Trikamdas Mathradas
Goculdas (Since
Deceased)
Of Bombay Indian Inhabitant
residing at Requia Manzil, Garden
Road, Bombay.
14(a) Naina Ajay Goculdas
R/a 9, Rukiya Manzil,
61-A, B Desai Road,
Mumbai 400 026
14(b) Shyam Ajay Goculdas
R/a 9, Rukiya Manzil,
61-A, B Desai Road,
Mumbai 400 026
15. Ranchoddas Mathuradas
Goculdas
Of Bombay Indian Inhabitant,
Residing at 12, French Bridge,
Choupatty, Mumbai - 400 007.
Deleted by orders dated 8th
January 2010
16. The Union of India,
Through the Secretary to the
Union of India, Ministry of Home
Affairs, Parliament Street, New
Delhi - 110 001.
17. The State of Madhya
Pradesh,
Through the Secretary to the State
of Madhya Pradesh, Finance Dept,
Bhopal, Madhya Pradesh.
18. Dinesh M Thacker
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2-app-302-2011-J+.doc
Zaveri Bungalow,
Shantaram Lane, Malabar Hill,
Mumbai - 400 006.
19. Varsha M Thacker,
Zaveri Bungalow,
Shantaram Lane, Malabar Hill,
Mumbai - 400 006. ...Respondents
A PPEARANCES
for the appellant Mr Pravin Patel, in all three
Appeals.
for respondent no.6- Mr Yogeshwar Bhate, with AR
union of india Varma.
for respondents nos. Mr V Dhond, Senior Advocate,
9A, 13, 14A, 14B with Ankit Lohia, Heena
Chheda, Bharat Jain & A
Jain, i/b Economic Law
Practice.
for respondents nos. Mr Arun Siwach, i/b Cyril
18 & 19 Amarchand Mangaldas.
CORAM : G.S.Patel &
Gauri Godse, JJ.
DATED : 11th August 2022
ORAL JUDGMENT (Per GS Patel J):-
CHAMBER SUMMONS NO. 1249 OF 2019 IN APPEAL NO.
302 OF 2011:
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Goculdas & Ors
2-app-302-2011-J+.doc
1. The Applicant is one Atul V Borikar. He filed this Chamber
Summons seeking that the Appellant, the Provident Investment
Company Ltd ("PICL"), the original Defendant to the Suit, be
directed to implead Borikar as a Respondent to the PICL's Appeal.
The second prayer that Borikar sought in this Chamber Summons
was for a stay of the hearing of the Appeal.
2. The Affidavit in Support indicates that Borikar joined the
PICL and worked for it for some period of time. There is a bulky
Affidavit in Support of the Chamber Summons. We are unable to
see how Borikar, an erstwhile manager of the Appellant, has any
locus to "intervene" in a civil suit for redemption of a mortgage or
an appeal from any interim order in such a suit. Borikar is neither a
necessary nor even a proper party. He may or may not be called as a
witness at the trial of the Suit.
3. Not only is the Chamber Summons completely misconceived,
but Borikar's conduct today before us needs to be deprecated.
4. The Appeal was before us last week. We passed an order on
4th August 2022 keeping the matter today and saying that there
would be no adjournments. All of a sudden, our Court Associate is
handed over today a so-called adjournment application on behalf of
Borikar. This says:
"the Applicant in person is busy in is personal work
wherein the Hon'ble High Court vide the order dated 3rd
December 2018 observed in paragraph 7 and under above
mentioned Chamber Summons is kept pending and can be
looked into when the Appeal is taken up for final hearing."
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5. Therefore Borikar requests us to adjourn the matter for two
weeks.
6. Borikar himself is not present in Court. That much is evident.
Even his Application says he is "busy in his personal work". The
person present in Court is one Manoj Singh (Mobile
No.8422065731; Aadhaar card separately noted), his clerk. To our
question as to where Borikar presently is, we are told that he is
outside. We are told in fact that Borikar is not engaged in any work
but is visiting a relative.
7. We refuse to adjourn the matter like this.
8. The Chamber Summons No.1249 of 2019 is dismissed.
APPEAL NO. 302 OF 2011:
9. The Appeal is directed against an order of 20th April 2011.
The Appellant is the 1st Defendant in a mortgage redemption suit
that has been pending since 1969. In its Notice of Motion No. 164 of
2011, the 1st Defendant, PICL, an undertaking of the Government
of Madhya Pradesh challenged an order of 10th February 2009
passed by the then Master and Assistant Prothonotary,
Administration and Public Information Officer, directing
reconstruction of the record. The second prayer was for an order
that the 1969 mortgage suit was not pending and was disposed of,
and the third was to direct the Prothonotary and Senior Master to
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furnish a copy of a report of enquiry and the findings as directed by
Kathawalla J by his order of 10th February 2010.
10. Paragraph 3 from pages 45 to 50 notes the progress of the suit.
To cut a very long story short, matters unravelled sometime on 13th
August 2008, almost exactly 14 years ago. On that day, the
Plaintiff's Advocate wrote to the Defendants saying that they
desired to take search of the papers and proceedings on 14th August
2008 and the Defendants could remain present. The Plaintiffs also
filed a search praecipe. The papers were not traceable. On 21st
October 2008, the Plaintiff sought an order from the Prothonotary
and Senior Master for reconstruction. A clerk of the Record
Department inform the Assistant Prothonotary and Senior Master
that the papers were not available in the department. Thereafter, a
praecipe was submitted on 1st January 2009. Ultimately, on 10th
February 2009 after some notices issued on 17th February 2009 to
the Defendants, the Master and Assistant Prothonotary passed an
order directing the Plaintiffs and Defendants to submit true copies
of the record and proceedings in the suit on or before 27th February
2009. Notice of the advanced date of 10th February 2009 was
apparently not given to the 1st Defendant which has a grievance
about it.
11. To move ahead a little, the specific grievance is that the
record was unilaterally constructed by the Plaintiffs and even the
Written Statement by the 1st Defendant was not reauthenticated or
reverified.
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12. The impugned order indicates that before the Trial Court the
suit actually progressed after February 2009. Issues were framed
and documents were marked. All this was done by December 2009.
On the reconstructed record the suit progressed to the stage of
cross-examination of PW-2.
13. Then the 1st Defendant filed Chamber Summons No.1999 of
2009 seeking a recasting of issues. An additional issue was
permitted and framed on 4th January 2010. At that time the 1st
Defendant demanded search of the registers containing orders from
1969 till 2009. The Court rejected the prayer for inspection of the
registers and, pending that, for stay of the suit.
14. The 1st Defendant then filed Notice of Motion No. 228 of
2010 which Kathawalla J dismissed on 10th February 2010. In doing
so, he commented adversely on the conduct of the 1st Defendant.
Among other things, he said that the 1st Defendant was only trying
to delay the hearing of the suit. A large part of that order is extracted
in the impugned order from page 9 to page 14.
15. The 1st Defendant filed two Appeals. It also filed two Special
Leave Petitions against an order of 3rd March 2010 adjourning the
hearing of the Appeal. The Appeal Court heard one of the Appeals,
Appeal No. 124 of 2010, and disposed of it on 9th April 2010. At
this point, what was being sought was an inspection of order sheets
and minutes books maintained by the Original Side registry. This
was allowed. Then the 1st Defendant filed two Chamber
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Summonses seeking an extension of time for inspection. These were
allowed.
16. Before the learned Single Judge in the present impugned
order, the 1st Defendant was represented by the then learned
Advocate General. The contentions were that M/s Udwadia and
Udeshi, Advocates & Solicitors, had no authority to represent the
Plaintiffs. There was no vakalatnama found in their name
authorising them. The suit had been filed through M/s Crawford
Bayley. The list of pending suits of 2008, 2010 and 1992 did not
indicate that the present suit was pending. Therefore it had to be
concluded that the suit had been disposed of though none could say
in what manner or by what order. It was then found that some pages
of minutes books were torn. A great deal of discussion then followed
based on Rules, the requirement for maintaining records, certain
circulars and so on. The learned Solicitor General of India was also
present before the Court.
17. Ultimately the learned Single Judge was of the view that the
question that fell for his consideration was whether the issue of
reconstruction was concluded in view of Kathawalla J's order of
10th February 2010 and the Division Bench appellate order of 9th
April 2010.
18. In paragraph 18, the learned Single Judge noted that the
process of reconstruction had been completed in August 2009 and
the suit had in fact progressed further.
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19. As to the question of representation, the learned Single Judge
noted the rival arguments including the submission made by Senior
Counsel for the Plaintiff that the existence or non-existence of a
vakalatnama was at best a curable, procedural defect. Even if given
later it would undoubtedly relate back to the date of institution of
the suit.
20. The rival submissions were considered from paragraph 25
onward at page 79.
21. The Plaintiff's submission was in fact refuted by the learned
Single Judge. We note this because in Appeal the 1st Defendant
surely cannot be aggrieved by this finding which is in its favour.
22. As to the matter of construction of record, the learned Judge
finally concluded that the order dated 10th February 2009 passed by
the Master and Assistant Prothonotary need not be set aside but
would have to be kept abeyance until such time as the enquiry in
respect of the authority of M/s Udwadia and Udeshi to represent
the Plaintiff in August 2008 was completed. The learned Single
Judge ordered such an enquiry. Again we note this because this also
is a finding in favour of the 1st Defendant and it cannot be surely be
aggrieved by this portion of it.
23. Then there is a further direction in paragraph 28 to direct the
Prothonotary and Senior Master to conduct an enquiry and arrive at
a decision. Parties were allowed to make their submissions. Pending
this, the learned Single Judge stated the further hearing of the suit
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being of the view that the issue goes "to the very root of the
matter". Then in paragraph 29, the learned Single Judge made some
general observations regarding the loss of record being undoubtedly
a very serious matter. He also observed that reconstruction was
governed by circular of 9th August 1995. A reconstruction should
ordinarily be by consensus. If there is no consensus an enquiry
should be ordered. This was precisely what was done.
24. As regards the enquiry into the vakalatnama, our attention is
drawn to an order of 7th June 2011 in the present Appeal. In
paragraph 3, on behalf of the Appellant a statement was made that if
it failed in the Appeal, it would not insist on an enquiry as ordered
by the learned Single Judge of the impugned award (i.e. the order
dated 20th April 2011) in relation to the vakalatnama of M/s
Udwadia and Udeshi authorising them to appear for the Plaintiff. In
view of this the Prothonotary and Senior Master was directed not to
proceed with the enquiry until the next date.
25. As regards the question of the records itself there was a CBI
enquiry. This ended with a closure report dated 19th December
2016. The CBI report notes that some papers were indeed destroyed
and in fact had been cut with knife or a sharp instrument. But the
findings were inconclusive and individuals could not identified.
They remained at the level of person or persons unknown.
26. For our purposes, the Appeal presents several difficulties.
The first is that it is impossible to understand what it is in the
impugned order that actually aggrieves the 1st Defendant, PICL.
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The only objective seems to have been to further delay the suit and
nothing further. The learned Single Judge ordered the enquiry. That
was done. The enquiry about the vakalatnama has been separately
dealt with by an earlier order as noted above.
27. The question of whether the Plaintiffs were properly
represented by M/s Udwadia & Udeshi is now closed in view of the
appellate order we have referred to above. But it does seem to us
that this entire question was really a non-issue. A litigant may
complain that some advocate is unauthorisedly seeking to represent
him. We do not see how one litigant can complain about the other
side's representation by a particular advocate. Here, the Plaintiffs
were not complaining about M/s Udwadia & Udeshi. PICL simply
had no locus to question that firm's representation of the Plaintiffs.
The Plaintiffs were correct in saying this was a curable defect; the
proper vakalatnama with an appropriate no objection could have
been entered at any time. Even a late entry would not nullify
anything that went before, and the fresh vakalatnama would date
back -- it had to -- to the institution of the suit. But, in any case,
the issue is moot.
28. As to the alleged destruction of records, it is true that an
investigation was needed. But the fact of destruction could hardly
result in a stay of the suit or a stoppage of the proceedings.
Reconstruction is regularly ordered for one reason or the other. If
there is an issue about the process of reconstruction, this can always
be addressed at any time.
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2-app-302-2011-J+.doc
29. The third aspect is about the 'non-pendency' of the suit.
Merely showing that some records did not show it as pending is not
enough to establish that the suit received a disposal.
30. In all this, we fail to see how the objective of justice delivery
was subserved by these directions. There is also the undeniable fact
that Kathawalla J found in clear terms that the 1st Defendant was
doing everything in its power to delay the suit. If the 1st Defendant,
PICL, contends that there was no valid mortgage to redeem, then
that is surely a matter of trial. It is not disposed of by trying to show
that the suit was 'not pending' or that there was 'destruction of
records' or that a particular firm's vakalatnama could not be found.
31. In any case, we quite fail to see what possible grievance the 1st
Defendant has against the impugned order or why the stay on the
proceedings in the 1969 suit should continue. If on the
reconstructed records, the 1st Defendant has any grievance
regarding the authenticity or correctness of the copy of its Written
Statement that has been placed in the reconstructed records, it is
always open to the 1st Defendant to point out that the affirmed
Written Statement, a copy of which is on record, differs in some
material fashion from the one that is in the reconstructed records. In
any case, for completeness of the record we direct the 1st Defendant
to file a copy of the Written Statement reauthenticated or reaffirmed
and in accordance with its own records before the Trial Court so
that the suit can proceed and so that there is no further delay.
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32. If there is one thing that emerges from this entire rather
sordid saga, it is that there is now an undeniable and desperate need
for an end-to-end computerisation, scanning and digitization of
records, registers, etc so that such instances do not recur. It is
unreasonable to accept physical records to be maintained and
retained in undamaged and pristine condition for decades and even
centuries. We have no proper methods of warehousing and storing
these documents in a temperature and humidity controlled
environment, safe from flood, fire, pestilence and worse. The only
solution appears to us to be to maintain a complete and accurate
digital record that can be used to reconstruct record when
necessary, with or without the consent of all concerned. This is in
fact now the need of the hour and we will suggest to the Registrar
General and his officers that urgent steps be taken in this regard
with a priority to be given to the oldest pending litigations in this
Court. These will need to be first identified, their papers segregated,
assembled and then properly scanned and digitized. To avoid any
controversy, soft copies must be made available on request to the
Advocates of either side free of cost.
33. We see no reason to interfere the impugned order. The
Appeal is without merit. It is dismissed. In the facts and
circumstances of the case there will be no order as to costs.
34. We clarify that there is no reason now to continue the stay on
the suit.
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35. As far as the trial is concerned, all contentions are expressly
kept open for decision on merits.
36. The suit will be decided uninfluenced by any observations in
the impugned order or in this order.
37. All pending Interim Applications are accordingly infructuous
and are disposed of as such.
APPEAL (L) NO. 279 OF 2010:
38. The Appeal is against an order of 27th January 2010
condoning a delay in filing a chamber summons to set aside the
abatement and allowing Applicants to be joined as party Defendants
to the suit. Those Applicants were joined as Defendants Nos. 4 and
5. They were the legal heirs of the 8th Plaintiff.
39. There is absolutely no reason to interfere with this order. The
Appeal is without merit and it is dismissed.
40. All pending Interim Applications are accordingly infructuous
and are disposed of as such.
APPEAL (L) NO. 404 OF 2010:
41. The Appeal is against an order of 26th April 2010. That was
on a chamber summons for seeking a declaration that entire suit
abated and in the meantime staying cross-examination of PW-2. By
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the impugned order, the learned Single Judge after a detailed
consideration dismissed the chamber summons.
42. In view of our judgment and order in Appeal No. 302 of 2011,
there is no question of entertaining this Appeal. The entire basis of
the ground for abatement is without substance.
43. There is absolutely no merit in the Appeal. It is dismissed.
There will be no order as to costs.
44. All pending Interim Applications are accordingly infructuous
and are disposed of as such.
45. No costs.
(Gauri Godse, J) (G. S. Patel, J)
11th August 2022
